*1 BELO A. H. CORPORATION
BLANTON.*
No. 1848. Appeals Eastland.
Court of Civil of Texas.
Nov. Rehearing
On Fеb. * rehearing pending questions Supreme to certified Motion await answers Court. *2 September plaintiff
said his * * * family Taylor had resided in County, ours.) Texas.” Upon the trial of venue ten- the issues of controverting plea dered said to the objec- privilege plaintiff, of over defendant, tion of the introduced in evi- original petition. dence his He offered ev- designed idence to show that the defendant published newspaper had articles and edi- which, peti- torials tion, Upon were to be libelous. objection of the defendant Upon hearing plaintiff was excluded. during testified as witness June, July, and, August months of at least to, up September he was resi- Taylor County. dent of During the intro- testimony Judge duction of this quired: in- any question “Is there his about residence?” Counsel re- for defendant plied: “We are going inbe the at- it, titude of agreeing go- we are not Turner, Seaberry Springer, & East- of ing any testimony.” to offer The Court land, appellant. for said: agree “You don’t that it was his le- Blanton, ap- Albany, Blanton & of for gal residence?” To which counsel re- pellee. plied: “We do not want to inbe the atti- agreeing tude plaintiff it.” While FUNDERBURK, Justice. was detailing facts to show that for five suit is brought years The one L. prior Thomas September 9, he, 1936,_ with Corporation, Blanton A. H. Belo family his living in a house - publisher News, Morning of the Dallas to as place his home and of residence in Ab- ilene, recover for libel. The de- Taylor County, Texas, the Honor- duly privilege fendant filed a Judge remarked, “Well, able trial the Court County, sued in Dallas its you knows that lived pass- I because plaintiff residence. The verified every ed there week.” Plaintiff moved to- controverting plea, alleging, among Washington, other C., September D. 25,. about things, that “this is civil libel 1936. Whether that change involved a by plaintiff against said defendant Taylor residence from County, regard publications defaming plaintiff libelous as immaterial in this case. published which the defendant between the gave judgment July September dates 1936 and the defendant overruling plea, 1936, both inclusive, dates as set forth privilege. appealed. defendant has pleaded Original Plaintiff’s Peti- Appellant propositions asserts five which, tion the purpose five assignments of error. The s%iit, action or that this is a civil libel is referred to ruling of the court alleged ground as the and made a Af- Controverting of error in assignments each of the fidavit, of er- the same as if it were now set ror was “in overruling in not pleaded sustain- [or forth and herein in full. ing] privilege.” its “Plaintiff shows that he resided in the contends, city Abilene, By proposition its Taylor first Texas', State of brought, the suit that “The Court erred in permitting Plain- at the time the accrual said tiff to introduce in evidence his unsworn. approximately years Original and that for S Petition any alleged: immediately preceding September 3, said therein in considering petition said as- family resided with his a vit, of Plaintiff’s Controverting Affida- !i¡ * * * * * ¡n Taylor statutory plea Tex- defendant’s priv- as, legal which was his place ilege home and said because Controverting Affidavit- * * * facts, residence and for aver, more oath, than failed to years continuously immediately preceding alleged petition in were true and fail- libel, without Affidavit he had filed his suit civil Controverting allege in said ed to pleading specifically the facts Petition alleged in said meet Coun- to confer Plaintiff failed Plaintiff's residence than ty.” R.S.1925, requirements *3 and the sustained such Court should have allega agree appellant that with as Privilege.” proposition Pleа of The designed original petition appellee’s tions - exactly thus with stated does not accord damages for to show a cause of action for only alleged his the record. Plaintiff not controverting libel were not a Taylor County, residence to be in but also they have been plea. Assuming that could place “at that said of residence was such adop by simple and made such reference time ac- of the accrual of said cause of tion, done. not it is evident that that was tion”; be- the cause of action as of, to, adoption said The and reference ing publications defaming for libelous specified purpose pleading single for plaintiff published which the defendant be- suit” showing “of was, is a civil libel 1936, July September 3, tween and legal with accordance well known inclusive, plead- both dates set forth principles, implied pur an limitation of the plaintiff’s Original ed in Petition.” An al- poses adoption, of such reference and legation to the effect that had filed specified. one so was There not, suit for civil libel was no error in the action of the court in over statement of a conclusion. That the suit ruling appellant’s objection the admis which, required was filed was a fact if plaintiff’s evidence, petition sion un alleged, certainly required be was to be not less it was for the reason that the proved by any other evidence than such as required judicial was knowledge to take supplied by judicial the court’s knowl- the venue fact that the the suit nature of And, already edge of the fact. as has been was one damages for libel and the in said, the venue was for suit fact troduction pleading with the effect by conclusively civil libel was established thereby encumbering the un record was plaintiff’s original petition, whether formal- necessary. objection Since that was not ly introduced in evidence or not. made, whether, we need not determine made, proposition now consideration should have been sustained. The asserts, assumes, necessary rather than that it record does not show that the Court con appellee, petition sidered in his said as a affidavit, directly, by proper or at least ref- controverting plea. petition Plaintiff’s to, adoption of, allegations erence conclusively established single plaintiff’s petition, like effect in and in ei- that the suit was “a oath, case'properly by ther verified to al- damages for libel” 29 to lege each and all of the facts 1995, general (R.S.1925, venue law show a cause of action in favor of fact, 29). proof subd. As defendant for for libel. pleading was the “best and all-sufficient principal question present- That this is the Stockyards evidence.” Ma Nat. Bank v. appeal ed is made still clearer ples, 127 Tex. 95 S.W.2d appellant’s propositions, third and fourth As necessary of that venue fact it not even as follows: formally pleading in duty troduced. would have been controverting af- “Proposition III: judicial knowledge the court to take insufficient to by plaintiff is filed fidavit Parker, Tex.Civ.App., fact. Fielder S.W.2d 2007, Re- requirements of Art. meet the Since, therefore, are al- no facts since vised Statutes properly court could not have considered any cause constitute oath that leged under allegations pleading as evidence give the defendant or against the any fact, other venue and the record only case, since the in this court venue so, does not disclose that the court did under oath' are forth set presume will trial that the honorable has plaintiff lives allegations pe Judge considered the libel. for civil against defendant filed 'a suit anything, evidence of tition as other than controverting af- IV: The “Proposition the nature of the action. case is in this fidavit requirements of meet the By proposition, appellant insufficient its second con- * * * Statutes since Revised tends, plain- Art. part, that “Since only therein referred to petition is only Controverting tiff filed Affidavit al- this is purpose of ‘for the Taylor Coun- leging his residence to be in only affiant and since the suit’ libel ty, the statement of conclusion that civil with set forth verifies under oath 'the facts so possibly far as affecting foregoing wholly stated in affi- There immaterial. davit’, set verify element, the facts time involving does a coincidence petition.” forth in his the fact time residence accrual of a cause of essential are of After careful consideration we the “venue issue, fact.” An in the sense “facts” sense may pleaded, a venue fact must be pleadings consist single fact, of a may or it consist suit, there are in a libel of which the venue group of facts. When it consists of sought to be sustained fact, more element, than one it is none optional exception in this theless single Judge issue. As said case, two, They two venue facts. Hickman, for *4 court, City in Ab (1) “damages” are that the for one Moore, ilene 604, 12 S.W.2d libel; in ref (2) was resident erence to an issue negligence: “Where of the wherein the suit was the combination of two facts is “at the time of the accrual the cause to negligence, constitute one faсts, neither action.” Both these more cer- venue of the so, facts stated latter, alone would do tainly alleged must be under oath would not be of the trial court plaintiff’s controverting plea in to single that he evidentiary out each fact privilege. Parker, Tex.Civ. Fielder v. group then jury them after the himself App., 119 named S.W.2d The first had returned its answer. But two where fact”, said, already conclu- “venue as must concur in order to constitute sively allegations in established facts negligence, those grouped facts should be plaintiff’s petition. pleading is “the Said in order to finding have a on the ultimate best and all sufficient evidence” of issue, which is the negligence par of the Stockyards Maples, fact. Nat. Bank v. su- ty.” Citing Co., Fox v. Dallas 111 Hotel evidence, pra. As conclusive Tex. 240 (Italics ours.) S.W. 517. pleading is effective to establish the venue princiрle, That we applicable believe to be fact, formally whether not. introduced or to, of, and controlling question now Parker, supra. may Fielder v. there- irresistibly, discussion. It leads fore without further consideration of said to the conclusion that the before proceed first venue fact to consideration mentioned statemént of the venue fact of what we have above stated to be correctly but the statement of one such second and other venue fact. such, fact. sufficiently As inquiry, At threshold plaintiff’s in controverting plea, without question suggests itself: Does the above petition. reference to his reality statement of such venue fact in in- clude not ? one two or more venue facts It way is believed this conclusion in no may This be said’to be the determinative Compton conflicts with the decision in question. truly If it is the statement aof Elliott, 126 any or fact, single venue then it would seem there upon. of the cases relied No plaintiff’s can be no but that con- sufficiency pleadings was involv- troverting in this case was sufficient as ed in v. Elliott. It was decided pleading facts, of the essential venue un- (R.S.1925, by any to, of, adoption aided reference 1995) prove in order to the venue fact that allegations petition, either all Stephens County place was the where the purposes, purpose. or a limited The con- alleged prosecution crime of malicious troverting plea plainly alleged plain- committed, prove it was to Taylor County tiff resided in at the time the crime was committed. This was alleg- of the accrual of the cause of action theory place commission petition. ed in his crime' —the venue fact is- certainly would judgment— contended that sue to be determined proved be, the fact alleged, residence in could not be to in County, conclusively established, Stephens however without evidence to show would, any particular without reference to that the crime in fact committed. But residence, any time of such suggestion be in sense there was no that as a matter of Likewise, material. pleading, existence of facts it would have been insufficient give which would rise to simply a cause allege to that the suit was one based plaintiff against in favor of prosecution, the defendant crime of malicious libel, without reference to the res- such crime and that was committed in Ste- Taylor idence of phens County. would as we But in trial of the issues of case, in issue In this deter- sought by it is not to judgment stated, the exist- show the facts to have showing a cause only mine the fаcts existence of libel are action for ence of a cause before, facts, are to of directly action. Those evidentiary, relating even however, only they relate evidentiary in so far relate, They in issue. do the fact They are not them- ac- the issues of venue. cause of to the fact of the accrual es- turn, sought fact, relates selves the “venue facts” tion, latter which distinc- judgment. This fact of tablished the time of such accrual. directly proposition that supports relate tion think accrual does time of such legal li- although in suit to establish to the fact in issue. .necessary facts ability it is elementary evidence is rule of An constituting each element issue facts must relate to “Evidence to establish to relevant and Rule Vernon’s facts.” proper a suit 10, p. Ann.Civ.St, Vol. necessary to al- brought, it is not If, therеfore, facts art. lege constituting each element relate do fact in issue do not relate the existence cause of action because which relate to another the cause not the matter rule issue, they under said the fact be determined rule it seems *5 This in evidence. admissible evidentiary court, being but such facts any dis- recognition of to forbids the us n by the of the issues judgment. be determined to Compton v. tinction between this case Elliott, proof supra. In that case crime showing all the elements of facts Thompson Duncan, The case of Tex. prove necessary in order to was held that Civ.App., 44 seems to be the place where Stephens was the upon chiefly by appellant. one There relied ap- would crime was committed. case, nothing opinion in the in that we proof of reasoning, peаr, the same that think, contrary to conclusions herein showing all the elements of facts expressed. Appellant quotes its in brief necessary order to cause of action emphasis with from that as fol “ the cause the accrual of prove the fact of states, oath, lows : ‘Said L. Duncan on J. action; that the fact the accrual upon to that facts confer necessary show the of action is to cause county cause where [the accrual; proof of and the time of the fact he, pending the plaintiff, suit] the time of such accrual Texas, resided in Dallas at necessary it was co- in order to show that time the accrual the cause action residence of ” incident with the fact of the petition.’ plaintiff’s Such, out in set think, County- ultimate plaintiff in —the legal equivalent is the exact of the nothing, howev- fаct in issue. We can see allegations controverting plea, required evidence er, in view case, any to, without instant reference proposition that to militate of, adoption any allegation any pur or for were but two venue facts in issue as there petition. Thomp pose in But stated. Duncan, supra, quoted as further son v. that because It seems to be assumed brief, appellant’s it is said “The al liability establish the a suit to contesting of the legations affidavit are libel, it would be fendant issue, and, to doubtless raise sufficient constituting allege each fact satisfactory proof plaintiff made while may element in the cause of action as an county September on Dallas he resided admitted, freely true the same would be be continuously thereafter, no priv- controverting plea plea of to a showing, оffered proof tending assumption be ilege. This we believe to show, that he was slandered or libeled on suit, consisting In the issues unwarranted. any other date.” several facts or elements of of the appears only that there was it not no Thus sought are to be established of action cause sufficiency of the question contro They judgment of the court. ' allegations plea, almost verting but identical plead- are to be in the sense that facts expressly this case were those in as with ed, to establish In case, be sufficient. sumed proper It would not be facts. Elliott, supra, question Compton v. no in of upon facts relied as evidence sufficiency pleadings of the was in prove in issue. conclusive, suffi- said however could have been in both of volved the decision but cient. The this evidence evidence. questions of excluded сases dealt upon objection appellant. Thus Holland, Tex. Pub. Co. v. American appears in such that if there was error essential Civ.App., 89 S.W.2d court was error invited stated were like this venue facts in a case appellant. think that the deci- We maintain thus: “The sole essentials Elliott, supra, sion in the court (1) the venue in Burnet were may have erred in the exclusion of the appellant (2) suit was for libel and one so, If it was error committed evidence. when the resided Burnet evidently appellee, who, satis- saying the in so arose.” That present judgment, does not fied with of evi upon speaking court was review, being the error not same fundamental, our sentence, succeeding by the dence is shown necessary under would be namely, established “These essentials were appel- cross-assignment of error. by proof the hear eithеr or admission at objection upon the un- having lant its only question ing.” The before have, ground, concluded that tenable opin following is disclosed in the from the pleadings no to au- sufficient upon ion was offered “No evidence, thorize the introduction ownership paper by de of such [of exclusion, cannot, we procured its fendant], forms basis omission should be heard to assert appellant’s assertion of reversible error.” insufficiency be reversed because applied think, as to a That error it. of the evidence pleading, such statement of essentials if it the same as treated be correct, it does not follow would waived, es- appellant being a sense same true would even topped to assert it. the court’s conclusion question of not correct. evidence was We, therefore, the whole conclude *6 judgment of the below over- that the court therefore, conclusion, It is our has not been ruling plea privilege of sufficiency of the con- of erroneous, and that it been shown have plea proper troverting to tender issues accordingly is so should be affirmed. of venue must be determined ordered. appellant. of contentions only propo- Appellant’s fifth and other Rehearing On sition, only proposition not de- pendent, premise, upon insufficiency as a FUNDERBURK, Justice. controverting plea is as of follows: opinion in this case In the case, “The evidence which con- held, seems to be con as we have not entirely testimony plaintiff’s sists of rehearing, appellant’s motion for tended residence, plaintiff’s petition, the charter that in all is cases that corporation, of defendant cirсu- controverting plea plea privilege of a a newspaper called ‘The Dal- lation “specifically set out the fact or facts re News’, Morning is insufficient con- las upon to confer venue of such cause lied prima overcome stitute venue facts to pending.” suit is on the court where the by made defendant it filed case when facie susceptible If to such con plea privilege.” its struction, subject it is to criticism for lack presents proposition of of clearness. insufficiency of the evidence to Compton Elliott, plea privi- In judgment, overruling the v. apt question arises term lege. The under most “venue clearly unique Plaintiff facts” was coined and defined. The circumstances. endeavored very evidence, formal to introduce the which so court declaration of its con shows, any question record or “The far as the clusions said: venue which it,' concerning plaintiff, desiring to presented would sue a defendant out have very evidence, county domicile, of defendant’s supplied absence side the * which, why prove, is here contended as reason the defendant improperly plea privilege, sustained the his are those which of asserts particular exception Included as a article privilege. stated applicable alleged appropriate libelous news- 1995 that evidence alleged and articles. Without of suit paper editorials the character evidence, petition.” alleged character Venue when evidence no faqts then there were not declared ther two venue held in deference to supra, our Undoubtedly, judicial construction. of sentence in the same was or offense to the defendant’s involved is mission of the venue fact language of action are tion were more than the evidence but held that two venue facts “Proof of the residing in different ruling quired constitute the issues to of them was the of decisions of one of the defendants in the against other venue They accrual of the cause of Stockyards is as essential as is fact. ther the elements his defense on facts were facts, therefore, elements of the crime [2] plead exception a saying that court’s opinion it was committed our language of the court: recognized (considered the venue cause of action? just pleaded are rather the In the that the factual elements it was proof two or more defendants.” One that holding, of of three venue pending.” regarded two facts, namely: each National adequate placed beyond question by prove, Said the if the facts fa'ct, is committed.” the merits in the (more the crime, offense, the court held venue courts pending those was maintainable the cause severally only proved in order to show was committed singly) “venue v. valuable purport having fact of the existence [singular] are that [1] making “at to a two, privilege. We Bank v. protection counties) That the facts of malicious Elliott, supra, than 4.” connection, namely: proof of the Court: “The Compton It was said: “The have added another facts involved. 1300, 1302, it was facts, prescribed by sustaining action.” «be determined Witness and a suit the time of to be shown plea but Are constituting the two of the was a been added a venue “the residence allegation were essential right to of action are three “* * * сonsiderably Maples, 127 constituting of a venue defendants allegation may is afforded that there venue, two venue v. the crime It is fur- language the com- privilege that and that *7 prosecu- justified trespass resident he has a cause resident the re- Elliott, by facts.” it was where being make over- one of place were have fact, fur- one ing. the the all, by by filed of a for rehearing that our conclusions are not if the suit ton now convinced that the venue state the Acceptance Corp. tual including, to the other two. The dence to show the existence of each fac- plea alleges ticular tion in upon the nature of termined those that under some circumstances the same pleaded, in accord with number of decisions supra, support preme Court treats the fact of the existence that as it several a fact while under others an fact or of a cussed in the recognizes If facts involved in that that one from the discussed, State alone cause of the three controversy, his It is Of one, overcome the factual elements resident defendant.” residence when the Stockyards element in the suit cause of action as following course, cases Bank, consideration authorizes the amount to more than three. Elliott, suit, it exception relied evident, the defendants exceptions a then cause of action that could be and that when a defendant, is by only among including opinions of a that whether a pleading may, venue particular is for sufficient the facts as stated in a the “resided at the original opinion legal 67 S.W.2d it cannot supra, need be brought, in privilege be a it, legal however, from the motion only it is National goes judgment, overlooked the rule dis- them Bramblett v. (cid:127) prima both to the conclusion is the averment of a comprising cause of action. Strickland, as matter proposition the issues to be will beyond conclusion. We are proper allegation exceptional particular exception. without Compton fact of the residence that here the Su- establish a on to sustain the proper which facie one of the three particular allega- Bank obliged, comprehend (Italics ours) general necessary with the result Taylor alleged, against [singular] gainsaid alleged herein which time of the by may depend proof saying and Texas in addition almost v. have deductions 91 S.W.2d court. v. Elliott libel, of improper by proof provision range that who has in order Maples, County, rule of Comp-' plead- would venue cited, Roby made non- been par- evi- the Be of venue; faith in in said selection of cause action” accrual of proof by com- has cause Every fact is he County. that a Taylor venue of defend- against No amount action prehended statement. nonresident in that of venue.” scrutiny the fact ant has no issue relevancy therein discern of can of of malice. defamation, publication, a a of dam- “suit for allege a suit is To that believe our allegation ages for libel” sounds like correctly points respect out allegation If such legal conclusion. aof which the show a facts which would cause by the be established were intended to is- action for libel relevant a basis the court as judgment of venue, logically sues of demonstrates But damages, would be. liability pay only evidentiary such facts are regarded as settled may certainly be venue facts riot constitute the and do venue relates to allegation, as it that such facts themselves. of a and not allegation of is the error, On invited Stockyards National legal conclusion. are, consideration, after further aided supra. Maples, v. Bank by appellant's rehearing, motion con allegation Perfectly analogous, the vinced that In de we were 'in error. Taylor County at plaintiff resided sufficiency termining question of the the cause time accrual plea, we were bound not allegation is of fact an to know from the record that under our Moreover, it is the al legal conclusion. interpretation Elliott, evi fact, more. not two legation of one necessary dence to establish issues pleader does to be noticed objection appellаnt he had aver excluded. As deduction from even Pie does .not the defendant. plead our conclusion on the simply He accrued. cause of action ing, excluding the action resident he erroneous, error law under the and since being appellee. committed But a resident was such unimportant, he unless assignment by appellant, no of error law, specified time at a cross-assignment appellee of error requirement law meets that he presents the action of court exclud the accrual of time of specifying “at ing the evidence for review this court. of action.” the'cause original opinion As said in the error respect in this was not a Bank Stockyards National jurisdiction fundamental error. Our authority proposi to re supra, for the Maples, ‘ court, rulings view actions or of a trial issues involved trial of the tion that in the error, involving plea of fundamental of a controverted hearing on the assignments distinctly error specifying only evidence- privilege the grounds upon party facts, which a to the to the venue is relevant *8 appeal before, R.S.1925, the relies.- Art. Ver latter, have said as we by non’s good Ann.Civ.St. art. 1844. The same issues tendered and issues statute declares that privilege. “All errors dis of not controverting to a tinctly specified “The are waived.” Under said: the Upon point this the court by operation of this error upon issues statute the statutory hearing the made excluding court in controverting ques the evidence in privilege and the of the question tion has been waived. the The to be a trial of then is intended affidavit arises, which" seems not to have the merits occurred of and not of prior to us in our consideration hearing shоuld This not the case.' of If such appellee of case: error the a consideration trial extended into waived, how can it be utilized than is in his the case merits of the [further] estoppel permit as an peculiar judgment the favor to necessary by language made concededly which affirmed article 1995 lacked the of of necessary support in the evidence? plaintiff relies.” This which the upon approve prop This was said in connection has had occasion court to “If following: the as follows: it becomes “Proof osition the neces sary appellee the an he has a cause or a defendant in authority is relevant to issue the of ap defendant tine error to invoke resident plaintiff in making pellate to determine the in that court existence of fundamental, conclusively error, ruling, in good shows his such However, the on proceedings of motion for we rehearing. or other re court, further have trial to obtain come to the conclusion that whether partial re awarding judgment out lief affidavit does set in lief, upon in his judgment “specifically or to sustain fact or facts basis, or for some on favor some other to confer venue such cause it was upon which pending”, other reason than that predicated by where the cause is court, it is then trial by cross- present such matters affidavit, Plaintiff’s elimi- Fenner, assignments of Miller error.” nating parts oath, the formal is as and Tex.Civ.App., 89 Ungerleider, & Beane follows: Graham, 506, 509; Texas Co. “ * * * brought a civil libel suit Tex.Civ.App., 403. The waiver 107S.W.2d by plaintiff against said defendant' has effect declared the statute publications defaming libelous action of the requiring regard us published which the defendant bеtween in excluding as not evidence July dates September 1936and review; subject consider itself inclusive, plead- both dates as set forth and chal ing appellant’s assignment error plaintiff’s original ed in petition, which evidence lenging the want of purpose that this is a civil support determine we must libel suit referred to and made a question, reference to the without of this controverting affidavit the same in why was not reasons now pleaded it were set forth here- troduced. in in full. independ There is another that he resided shows “Plaintiff why we ent we are now convinced reason Abilene, Taylor City County of opinion. were in error in our suit is of Texas where this State evidence, true, appellant objected said accrual of cause of at the time true, clearly re but it is also flects, record approximately five and that objection was not Septem- immediately preceding said years excluding evidence. The court’s 3, 1936, his plaintiff resided with ber objected ground evidence was family Seventh at No. 3425 South Street pleading to the want of it. Abilene, City Tex- in the as, precedently and inde court announced legal place of was his home and pendently any objection that he was during said time had residence and which testimony upon going to exclude the an family household furniture and in effects, their entirely theory, no manner different twenty- for more than and that dependent upon pleading continuously, immediately pre- eight years subsequent objection. involved September plaintiff with ceding said of the view evidence was excluded because City family his had resided of Abil- evi judge of the learned trial Texas, ene, Taylor County, and that under unnecessary dence to establish the No. entitled Libel paragraph and Slan- requisite objected It was venue facts. 1995, of Revised Civil der, Article theory. directly; opposite Under Texas, exercised Statutes circumstances, file, by law to option given him therein holding would not be warranted file, did invited, applying and thus the error complain- grievances resided when he estoppel principle circum Original Petition ed of in his manifestly lacking stances essential committed, provided and that as fendant *9 estoppel. true characteristics statute, juris- this court has the aforesaid upon rehearing It is our conclusion prop- and that venue is this case diction granted, motion should be that that Taylor County, Texas.” erly laid in affirming judg- judgment our former plaintiff alleges observed that It will be aside, court should be set of the trial ment paragraph one “this a civil quoted said should be re- and that by plaintiff against said libel suit versed cause.remanded. paragraph and in two defendant” accordingly so ordered. in the where the plaintiff resided time of “at the the accrual filed suit was GRISSOM, Justice. cause of action.” reference petition majority is restricted of this con him court disposition purpose “showing foregoing that this case sole cur 1024 nothing, petition, alleged in we find it amounts to No suit.” libel civil utterly allege a cause contro- because fails part made a petition is verifi- of action defendant in Tarrant to in nor sworn verting affidavit county.” It is controverting affidavit. cation facts no obvious that civ- Our decision it is in a plain- showing that controverting affidavit plaintiff controverting il libel suit for in a 199S, 29 of Art. If Subd. was libeled. tiff prove hearing and on a allege affidavit to courts, by our interpreted Art. 2007-, showing facts he was libeled dеfendant show- alleged, as facts to be require such and that at the he he time was so libeled libel, contro- fact” of “venue ing the resident where-in he manifestly insufficient. verting affidavit suit, also, filed his finds support the fol- reference thereto law think the Independent lowing authorities: Ins. Life Thompson v. correctly announced Hogue, Co. Tex.Civ.App., v. 70 S.W.2d 508, 509, Duncan, Tex.Civ.App., 44 S.W.2d 629, 631; Rogers, American Co. Pub. v. “ ** * rested the burden as follows: Tex.Civ.App., 804; 801, 65 S.W.2d Tex. 27 * * * prove plaintiff allege 718; Dow, 146, World Co. v. 116 Tex. Jur. 287 * * * words, a cause of action 241, 242; Hickman, S.W. 121 v. Jones ** * and he libeled at had been 405, 982; Tex. 48 S.W.2d v. Wom Jones county where he resided the time ack-Henning Rollins, & Tex.Civ.App., 53 instant case bring To suit. filed the 635, 636; S.W.2d Highway Freight Motor venue exclusive within Slaughter, Tex.Civ.App., Lines v. S.W. 29, plaintiff should provided in subdivision 538; 533, 2d v. American Fruit Growers contesting plea his these alleged in have Sutherland, 898, Tex.Civ.App., 50 S.W.2d facts, proof of and mаde same essential 900; Commercial Ins. v. Standard Co. n » * * Lowrie, Tex.Civ.App., 49 S.W.2d refused; Lavere, writ v. Tex.Civ. conclusion, finds Our James 1371, App., 1372; 95 S.W.2d Gulf Ref. Co. Supreme in the decision our Court in 391, Lipscomb, Tex.Civ.App., 248, v. 41 S.W.2d Dunklin, 393, v. 115 S.W.2d Jefferies 249; Berwick, v. Tex.Civ.App., said: wherein Critz “Under Jacobson Justice 1035; Thompson, S.W. Gholson v. plain the above statute terms [Art. 318; Civ.App., 298 Bender Kow S.W. plain v. plea 2007], alski, 201; Tex.Civ.App., 13 S.W.2d Fidel is, be, pleading. tiffs and must a sworn ity Deposit Locke, Tex.Civ.App., & Co. v. Also, plain under the terms of such stat 646; Lindsey, 12 S.W.2d Bledsoe v. Tex. utes, controverting plea set such must out 71; 856; Civ.App., 104 S.W.2d fact, facts, specifically Tex.Jur. Review, 13, p. Texas Law vol. 217. plaintiff establish venue in the court pending. where the case is this connec determined, It has been under subd. of9 tion, unquestionably the statute contem plaintiff Art. that when a in a suit plates controverting plea consti trespass based on a crime or plеadings tutes the on the seeks to avoid transfer of the case issue allege must privilege, defendant’s he al must all prov the facts that are lege in his prove affidavit and ed to sustain court where showing actual commission puts filed. The statute the bur the suit is trespass and it was commit crime or plead on the den his con county where the suit was filed. ted in the troverting plea, prove, and to the facts Compton Elliott, 126 Tex. 88 S.W. venue in the will sustain the 247; 91; Id., Tex.Civ.App., 55 2d was filed. El Walker, Oil Mill v. Tex.Civ. Waco Cotton liott, (2d) 88 S.W. 126 Tex. An Likewise, App., 103 S.W.2d controverting plea determined, examination under subd. has been plaintiffs in this case will disclose directly indirectly prove nor makes a cause neither that it private corporation the defendant petition case thereof. *10 or therefore and that such cause there be Such allegations, own of, county its unaided in in the where the tested arose suit was petition. way by Henderson Fort Grain instituted. National v. Stone Bank 620, Russ, S.W.(2d) 568, Tex. 64 571, 674; 122 Forbess, 126 Co. v. 347. Tex. 91 S.W.2d Bottling we test this Kubena, When its Texas Coca-Cola Co. v. allegations, Tex.Civ.App., or own terms unaided 605. 90 S.W.2d There is
1025 (as ne- of facts in libeled showing distinction was ground for no real so alleging fact”) and he was “venue at the time cessity, way manner of and and plaintiff’ in Taylor “arose” libeled in of action resided a cause proving that instituted where he and desired county the suit was to maintain where n cause If he 23, 1995), required prove suit. were fact and that a (subd. Art. plaintiff of required allege when he at a time defamation action “accrued” was county suit was in which the facts defamation. showing Allegation in and resided filed, 29, proof In both in- 1995). facts are the ordi- (subd. made in nary way. Compton Elliott, elements supra. the essential stances v. prоved. and alleged must be both of action allegation Plaintiff’s that a cause in hold- ground for distinction Nor is there allegation is not an accrued 1995, that the ing, subdivision Art. specific required by fact Art. 2007. It is crime and that it actual commission general conclusion of law not based county in the of the suit was committed is. any specific on allegation of facts contain proved, be and and a the controverting affidavit, ed in or made is neces- holding, under subd. by adoption allega thereof of such prove showing sary allege and facts in petition. tions Duffy Cole v. libeled and that when libeled was fendant Co., Pet. 495; Tex. 5 S.W.2d Hud county in the of suit. he resided Hansbro, gins Tex.Civ.App., v. 11 S.W.2d It in suit to has been determined re Kowalski, 607; Tex.Civ.App., v. Bender penalty usury, under Art. cover 201; Fidelity & v. Deposit 13 S.W.2d Co. may provides suit 646; Locke, Tex.Civ.App., 12 S.W.2d county “in the of the defendant’s 814; Roby Bramblett v. State Tex.Jur. residence, county or where such 450; Tex Bank, Tex.Civ.App., 67 S.W.2d usurious interest shall have been received Strickland, Tex. Corp. v. Acceptance collected, or or has contract been Civ.App., 91 S.W.2d into, parties or where paid entered who last cited' agree that the two do not We interest the usurious resided when such con should be overruled. cases that, upon filing tract made” was of de privilege, fendant’s “the burden was record that appears from the prove on the both to and to opinion that and venue facts one following: (1) Taylor County was venue in show necessary in Young That defendant’s domicile was pe show, by his plaintiff to county; (2) usurious interest was re tition, was for libel and that suit that the county; in Young ceived collected (3) plaintiff alleged he libeled the time was at contract was entered that the usurious in Taylor Cоunty. resided Notwith he county; party Young (4) to in who view, plaintiff attempted to standing this paid Young usurious resided in interest proof was libeled. was prove that he Such county when the was contract made.” plaintiff ap excluded. trial and Dunklin, Credit Co. Universal v. 129 Tex. opinion in for such parently find 324, 105 S.W.2d Tennant, Tex.Civ. v. Printing Co. Houston 762, and other possibly App., 76 S.W.2d words, the defendant did not great same court. The opinions county reside in the where the suit fil susceptible opinion thinks said writer ed, notwithstanding-that the nature of the course, (which, interpretation, penalty one for for collection of necessity allegation exclude the would (which usurious interest fact is shown con proof defendant was and clusively exclusively by petition), he resided a time when actually at libeled receipt collection of should County). If said decision interest suit, usurious accord are not interpreted we so the fact that a usurious contract was contrary an rule think into, entered or the fact therewith. that usurious in Dallas other courts by the actually paid by plaintiff nounced terest was stated, Except herein we are that he resided in the correct. suit when expressed conclusions with the accord made, usurious contract must be by Judge FUNDERBURK proved. Shock, Ballard rehearing. foregoing 385; motion for Civ.App., S.W.2d Art. 5073. The accord with our decision reasoning allegation same conclusions Clyde Blanton L. Garrett Thomas L. of such thereof cases, al., 124 decided November think, required allegation et above *11 case, however, in which sufficiency allega of the no controverting affidavit. tions in the allegation neither nor being There showing plaintiff of facts was libeled while Taylor County, judgment
he resided in reversed and the cause remanded.
COMMERCIAL STANDARD INS. CO. v.
ROBINSON al. et
No. 13308. Appeals
Court of Civil of Texas. Fort Worth.
March
Rehearing April 14, Denied Leachman, Payne, Robertson, Gardere & Dallas,
Lancaster, in error. Vaughan, W. West Robert M. John Dallas, both of for defendants error. DUNKLIN, Chief Justice. Henry was instituted Robin- This suit son In- Commercial Standard Company, compensation surance to recover Compensation Workmen’s Law State, Vernon’s Ann.Civ.St. art. injuries seq., for sustained him 8306 et August on or in Tarrant about
27th, 1933, employ- working in the while Bridge Company, who ment Austin defendant, carried insurance provisions terms of the Act. From in favor of prosecuted fendant has this writ of error. According allegations plaintiff’s pe- tition, working while Bridge for the Austin Company while discharging the usual customary employment, duties of his injury he sustained an accidental reason block, weighing wooden of a about pounds, slipping from under a cable on a bridge working falling 6 or 8 feet striking him fight side of the back on the of his head. According allegations, to further from that resulted, others injury numerous which are