WALKER v. MARTIN
No. 10512.
Court of Civil Appeals of Texas. San Antonio.
March 29, 1939.
Rehearing Denied June 28, 1939.
129 S.W.2d 1149
The receipt given to the depositor in the Thornton case is worded as follows: “Wiley Thornton has deposited in this bank $2,000 government bonds bearing interest at 4 1/2 per cent. The above bonds are left for safe-keeping and are the property of said Wiley Thornton, and are to be delivered to him or his assigns upon return of this receipt.”
In that case the bailment was held to be gratuitous. But the receipt in the case before us specially provides: “Interest payable hereon in lieu of the interest on such bonds according to the terms and tenor of such bonds.”
Thus it affirmatively appears that the depository bank contracted to pay to the owner of the bonds, while same were on deposit with it, the same interest as the bonds bore upon their faces.
What particular use the bank could and did make of such liquid assets in its hands that would enure to its advantage, while it held these bonds, is not disclosed and we do not feel the need of speculating upon same.
Suffice it to say that the bank believed the possession of such bonds, in its banking house, was of such value to it that it could afford to and did promise to pay the depositor the same rate of interest thereon as the bonds in fact bore upon their faces.
It seems to us no answer to say that the bank could not lose by the transaction because the bonds represented liabilities of the United States Government which, up to this hour, is a solvent and perfectly responsible debtor. The same could be said of a note executed by any responsible and solvent debtor.
The fact that the bank could not lose anything by reason of taking the bonds and assuming the payment of all interest that is provided for in the bonds is evidence to us of some substantial benefit accruing to the bank by reason of the possession of the bonds.
We believe that our conclusions are supported by Tyler County State Bank v. Shivers, Tex.Com.App., 6 S.W.2d 108, and First Nat. Bank v. Price, Tex.Civ.App., 262 S.W. 797.
Accordingly, the judgment of the trial court is reversed and judgment is here rendered for appellant against the said bank, for $500, and against the Banking Commissioner of Texas, as liquidating agent, for $344.46, and it is ordered that, upon payment by the Banking Commissioner of the sum of $344.46 to appellant, the judgment for plaintiff against said bank be credited with such sum, and the balance so remaining be and the same is here declared a judgment against said bank, classified as the claim of a general creditor of the bank.
It is so ordered.
Abney & Whitelaw, of Brownsville, for appellant.
M. F. Armstrong, Jr., and J. Hodge Thompson, both of Weslaco, for appellee.
This is an appeal from an order overruling a plea of privilege.
Tullis Martin, suing by and through his father and next friend, C. R. Martin, instituted this suit against George Walker. His petition was in two counts. In the first count he sought to recover damages for an alleged false imprisonment and in the second count for libel and slander. The suit was filed in the 92nd District Court of Hidalgo County, in which county plaintiff and his father were alleged to have resided.
George Walker timely filed his plea of privilege to be sued in the county of his residence, which was alleged to be Cameron County. Plaintiff in turn filed his controverting affidavit. The issue thus joined was set down for hearing, and after the introduction of evidence the trial court overruled the plea of privilege. George Walker presents this appeal.
The evidence offered at the hearing consisted principally of the testimony of Cecil Tullis Martin, plaintiff below and appellee
M. F. Armstrong, Jr., Esquire, one of appellee‘s attorneys, testified that George Walker came to his office a few days after the occurrence and told him in substance that he was the owner of the Jitney Jungle Store Number 6, and that he had employed the two “checkers” but they had gone too far and he was sorry it happened.
The following stipulation as to the residence of appellant and appellee was entered into, to-wit:
“Mr. Armstrong: It is stipulated by the parties herein that in order to obviate the necessity of proving the following facts, to-wit: That the plaintiff, Tullis Martin, and C. R. Martin are now, and have at all times and on the several dates mentioned in the plaintiff‘s original petition and controverting affidavit, been residents of Hidalgo County, Texas; that the plaintiff, C. R. Martin, is the father of Tullis Martin; and that the plaintiff, Tullis Martin, is now and was on the date mentioned in said petition, of the age of nineteen years.
“Mr. Whitelaw: And, if the court please, we want to include in that stipulation that at all times mentioned in plaintiff‘s petition and controverting affidavit and at the present time and continuously during all those times, the defendant in this case was a resident of Cameron County, Texas. Is that all right?
“Mr. Armstrong: Yes; at all times mentioned in plaintiff‘s petition.
“The Court: And now is?
“Mr. Armstrong: And now is.”
It is clear from the above statement that neither a prima facie case of false arrest nor of libel and slander was made out by the evidence.
The evidence fails to show that appellee was actually restrained of his liberty. He does not state that he attempted to leave and was stopped by force or fear, or that he was threatened in such a manner that he was afraid to try to leave. The evidence rather indicates that he went to the office willingly and voluntarily, stayed there to protest his innocence and ultimately accomplish this fact. The evidence is insufficient to show false imprisonment. McBeath v. Campbell, Tex.Com.App., 12 S.W.2d 118; Houston & T. C. Ry. Co. v. Roberson, Tex.Civ.App., 138 S.W. 822; Kress & Co. v. De Mont, Tex.Civ.App., 224 S.W. 520;
It is clear, since the case of Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, that the venue facts which the plaintiff must establish by a preponderance of the evidence includes the proving that the crime of false imprisonment in all of its elements has been committed by the defendant in the county where the suit has been filed. The evidence was insufficient to maintain the venue under subdivision 9 of
We next come to consider whether or not the suit could be properly maintained in Hidalgo County under subdivision 29 of
Section 29 of
It is clear from the reading of the above section that before venue can be maintained under this section that a plaintiff must allege and prove that he has been libeled or slandered and at the time of such defamation he was residing in the county where the suit was filed. The defamation must be proved in all of its essential elements. A very clear opinion on this matter is found in Thompson v. Duncan, Tex.Civ.App., 44 S.W.2d 508, 509. Justice Looney says:
“But we have here an entirely different question. The venue of libel and slander suits under subdivision 29 (article 1995) is not as definitely and unqualifiedly fixed as is the venue of suits controlled by subdivision 14, in that a plaintiff in the former class of suits is only authorized to bring the same in the county of his residence, if he resided there at the time the cause of action accrued, while suits controlled by subdivision 14 must be filed in the county where the land, or a part thereof, is situated, and not elsewhere. It is evident, therefore, that there exists in each libel or slander suit an element of fact that determines proper venue that does not exist in cases controlled by subdivision 14; consequently the burden rested upon plaintiff to allege and prove, at least prima facie, a cause of action—in other words, that he had been libeled or slandered, and at the time resided in the county where he filed the suit. To bring the instant case within the exception to exclusive venue provided in subdivision 29, plaintiff should have alleged in his contesting plea these essential facts, and made proof of same, and for this purpose was not permitted to rely upon the allegations of either petition or contesting affidavit, but should have made proof aliunde.
“Plaintiff sued Tunnell and the Fowlers on the theory that they were parties to a conspiracy to defame him, and that Thompson, a coconspirator, in furtherance of the conspiracy, uttered certain slanders and published a certain libel. In order to defeat the pleas of privilege filed by these defendants, we are of opinion that plaintiff should have alleged in his contesting affidavit, and made proof prima facie at least, not only that he had been defamed by Thompson, as alleged, but that the alleged conspiracy between him and the other defendants existed.”
The Thompson-Duncan case has been recently followed in Blanton v. Garrett, Tex.Civ.App., 124 S.W.2d 451.
The order overruling the plea of privilege will be reversed, but, as the matter does not seem to have been fully developed, we feel that equity and justice require that the venue not be here changed, but that the matter be remanded to the court below for a further hearing.
Reversed and remanded.
On Motion for Rehearing.
Since delivering the original opinion in this case the Supreme Court in answering certified questions in the cases of A. H. Belo Corp. v. Thos. L. Blanton, Tex.Sup., 129 S.W.2d 619, and Thomas L. Blanton v. Clyde L. Garrett, Tex.Sup., 129 S.W.2d 623, opinions delivered June 21, 1939, but not yet reported in State Reports, has held in effect that in suits for defamation of character, in order to retain venue in the county of the residence of the plaintiff it is necessary, under the provisions of
We have purposely delayed acting upon this motion until the Supreme Court answered the questions certified to them by the Eastland Court of Civil Appeals in the above two cases.
The motion for a rehearing has been carefully considered and will be in all things overruled.