Opinion
No. 4382.
November 1, 1933. Rehearing Denied November 23, 1933.
Appeal from District Court, Fannin County; R. T. Wilkinson, Judge.
Action by Fred S. Rogers against the American Publishing Company and another. From an interlocutory order overruling defendants' plea of privilege, defendants appeal.
Affirmed.
The appeal is from an interlocutory order overruling the defendant's plea of privilege of the venue in an action for damages for libel. The appellee filed a suit in the district court of Fannin county against the appellants for damages for alleged libel. The appellant publication company is a private corporation, with domicile in Austin, Travis county, Tex., and publishes two newspapers in Austin. The other appellant is also a resident of Austin, Travis county, Tex. The publishing company published in its newspapers and circulated as a news item a statement of a recent judicial decision as respects state officers' fee accounts, and purporting to quote Mr. Lynn as to the effect thereof on future claims. Also appeared in the papers two editorials purporting to be based on the reported statement and effect of the judicial decision. It was claimed by the appellee that the publications contained statements which were untrue and libelous as relates to him.
The principal points on appeal, in effect, are: (1) A prima facie case of libel was not shown against either of the defendants, especially the defendant Lynn; (2) of the sufficiency of the controverting affidavit of the plaintiff; (3) of the sufficiency of the evidence to establish the legal residence of the plaintiff to be in Fannin county.
The plea of privilege of each defendant expressly claimed the "privilege to be sued in Travis County, Texas, the county of domicile," and, besides stating that "no exception to exclusive venue in the county of one's residence provided by law exists in said cause," specially pleaded: (1) "That the plaintiff, Fred S. Rogers, was not at the time of the commission of the alleged wrongs of which he makes complaint in his petition a resident of Fannin County and was not at the time of the institution of the suit a resident of Fannin County, Texas"; (2) that "the defendant is not now at the time of the institution of the suit, nor at the time of service of process, a resident of Fannin County, but is now a resident and has at all times resided in Travis County, Texas."
The plaintiff's controverting affidavit, after expressly denying "all and singular the allegations contained in the plea of privilege of the defendant," specially pleaded, as need to be stated, that: (1) "This is a libel suit as shown by the allegations of the original petition, to which reference is now specifically made"; (2) "That by virtue of the exception to the venue statute relating to libel suits the plaintiff is entitled to maintain his suit in the county where he maintains his domicile and permanent residence, and that this suit was well brought and can be maintained, tried and disposed of in Fannin County, Texas, in the District Court thereof"; (3) "That at the time of filing this suit, and at the time of the accrual of plaintiff's cause of action on May 16, 17, 18 and 19, 1932, and for a long time prior thereto and since said times and to the present time plaintiff has had his domicile in Fannin County, Texas, without any intention of changing the same, but with the intention of maintaining his domicile and permanent residence in said county; that at all of said times the plaintiff has had and maintained his residence and domicile in Fannin County, Texas."
Upon the hearing of the plea of privilege the plaintiff introduced in evidence his original petition for the purpose of proving there was a suit filed in the district court and to show the character of the controversy. The petition set up the publications, and alleged that certain statements were untrue and were defamatory and libelous of plaintiff, and that the newspapers published by the publishing company "has a daily circulation throughout the State of Texas" and "went to all of its purchasers and subscribers throughout the State of Texas." A copy of the newspaper published on the date alleged was then introduced in evidence and read. The articles of publication as alleged appeared in the newspaper of the date and issue stated. The plaintiff then, after explaining the real nature of the suit brought by him and which the alleged publications on the face thereof purported to discuss, and about the two warrants which were lawfully issued to him by the comptroller of the state, testified to matters bearing upon defamation and the injury to him. It is unnecessary to state the evidence in detail and in full. The plaintiff was formerly county attorney of Fannin county. Upon the evidence offered by both the plaintiff and the defendants respecting the residence of plaintiff, the trial judge concluded: "That while the plaintiff is now residing in Travis County, Texas, yet his residence is of a temporary character, while his children are in school, and Fannin County is where he paid his poll tax, where he intends to vote, where his homestead is located, and where he actually resided for many years and where at the time of the accrual of this cause of action he intended to return with his family when the reasons for their moving to Austin ceases, which fact he expressed to his friends prior to the accrual of the cause of action herein." It may not be said there is no evidence going to show the factual elements set out by the trial judge, and therefore we do not feel warranted in disturbing such conclusion of fact as made.
Samuels, Foster, Brown McGee, of Fort Worth, and Jerome Sneed, Jr., of Austin, for appellants.
Cofer Cofer, of Austin, and Cunningham Lipscomb, of Bonham, for appellee.
It is believed there may not be predicated in the case an objection of Fannin county's being the wrong venue or county in which the action could in the first instance he brought for trial. The petition of the plaintiff set out in full the words printed in the newspaper and circulated, and the words which he claimed to be untrue and of defamatory imputations, and contained allegations of damages. It was charged, in effect, that both defendants were concerned with the report and publication of the matter claimed to be defamatory. It was specially alleged that the plaintiff was a resident of the county in which such suit was instituted. Considering alone the averments of the petition, as we do for the purpose of the decision of the present appeal, the two things must be determined as affirmatively appearing that: (1) The plaintiff has instituted a suit against the defendants named in the county of his residence, and not in the county of their residence, and (2) the character or nature of the suit must be deemed legally that of damages for libel. As very aptly stated in Koch v. Roedenbeck (Tex.Civ.App.) 259 S.W. 328: "On questions of venue the character of an action is determinable solely by the allegations contained in the petition, and is a question of law to be determined by the court, and not a question of fact to be determined by testimony aside from the allegations in the petition." Rule approved: Sims v. Trinity Farm Construction Co. (Tex.Civ.App.) 28 S.W.2d 856, 857; Oakland Motor Car Co. v. Jones (Tex.Civ.App.) 29 S.W.2d 861; Texas Farm Mortgage Co. v. Starkey (Tex.Civ.App.) 25 S.W.2d 229; and other cases cited in the above cases. The underlying purpose and important result of the determination of the character or nature of the suit is that purely of fixing or laying the controlling venue or county of trial which is pointed out by the statute itself for that certain special class of cases. That is the test by which it may be determined whether a particular cause of action could be brought for trial elsewhere in the state than the county of the defendants' residence. The question concerns the place or county of trial as an exception for the special class of cases pointed out by the statute, and not of the right of the court to hear and determine the particular cause on its merits. The nature of the suit pleaded being legally that of damages for libel, such suit may, as a matter of pure law, in the first instance be brought for trial in the residence of the plaintiff. Libel is not an action that has one county and but one in which it should be brought for trial. The venue or county of trial is expressly laid by the statute in the county of the residence of either the plaintiff or the defendant, at the election of the plaintiff. Subdivision 29 of article 1995 reads: "29. A suit for damages for libel or slander shall be brought, and can only be maintained, in the county in which the plaintiff resided at the time of the accrual of the cause of action, or in the county where the defendant resided at the time of filing suit, or in the county of the residence of defendants, or any of them, or the domicile of any corporate defendant, at the election of the plaintiff."
Determining the character of the action pleaded and the county of trial pointed out by statute for that class of cases, then the questions for decision by the trial judge and for the appellate court on appeal became that (1) of whether the plaintiff substantially meets the requirements of the statute as respects his controverting affidavit to the plea of privilege, of averment and proof, and (2) of whether the venue laid in the petition of the original case agrees with the venue or county of trial actually shown with particularity by the evidence offered on the hearing of the plea of privilege. Although, as above stated, the petition of the plaintiff must be considered by the court for the purpose of determining the legal nature or character of the suit, yet, as against a plea of privilege, the allegations alone of the petition cannot be relied upon by the plaintiff as constituting prima facie proof of his right to bring the suit in the first instance in a particular alleged county. World Co. v. Dow, 116 Tex. 146, 287 S.W. 241; Sims v. Construction Co. (Tex.Civ.App.) 28 S.W.2d 856. It cannot at all events be conclusively presumed that the original petition of the plaintiff has stated the true legal place of venue. It is required by statute of the plaintiff, in order to avoid the force of the plea of privilege filed by the defendant, to make a controverting affidavit with averments under oath of the existence of the specific facts relied upon to confer venue in that county. Article 2007, R.S.; Wood v. Tandy (Tex.Civ.App.) 299. S.W. 282; Ryan v. Johnson (Tex.Civ.App.) 284 S.W. 652. The manifest object of that provision of statute is to have the true place of venue actually proven on the hearing of the plea of privilege in order to avoid giving venue to the action of the wrong, or untrue or fictitious place, if so alleged in the original petition. It is possible in a given case for a plaintiff to evade the true venue of a case by alleging, by mistake or intention, the wrong or untrue county of venue. The exception to the above rule as respects the relying upon the original petition for venue might probably be in cases where venue is laid in the county where the land may lie. Thompson v. Duncan (Tex.Civ.App.) 44 S.W.2d 508.
In the controverting affidavit of the present appeal the plaintiff set up in general statement that the action upon which he sought a judgment was that of a libel suit, and, in effect, that the facts relied upon to establish such cause of action were shown in the allegations of his original petition in the case, and to which petition reference was specifically made as a part of the affidavit. The controverting affidavit then further specifically set up the residence of the plaintiff in Fannin county. It has been held that the controverting affidavit does not have to go so far as to replead the case. Demmer v. Auto Co. (Tex.Civ.App.) 34 S.W.2d 421; Winn v. Schramm (Tex.Civ.App.) 39 S.W.2d 645. It is further held that it is not an insufficient compliance with the statute (article 2007) to refer to and make the original petition a part of the controverting affidavit, Perkins v. Bank Trust Co. (Tex.Civ.App.) 230 S.W. 736; First Nat. Bank v. Childs (Tex.Civ.App.) 231 S.W. 807; Shafer v. Swift (Tex.Civ.App.) 256 S.W. 309; Randals v. Green (Tex.Civ.App.) 258 S.W. 528; and other cases; that it was sufficient basis for oral proof respecting the grounds of suit. The case of Paxton v. Bank (Tex.Civ.App.) 42 S.W.2d 837, did not attempt to make the original petition a part of the controverting affidavit. In other cases reported there was omission to refer to and make the original petition a part of the controverting affidavit. And the decision in the case of Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S.W.2d 495, did not involve the point of whether the reference to plaintiff's petition would be sufficient compliance as to grounds of action, if followed up with evidence on the hearing.
As to his residence the plaintiff set up in the controverting affidavit, "that at the time of filing of this suit, and the accrual of his cause of action on the dates of May 16, 17, 18 and 19, 1932, and for a long time prior thereto and since said times, the plaintiff has had his domicile in Fannin County, Texas, without any intention of changing same, but with the intention of maintaining his domicile and permanent residence in said county; that at all of the said times the plaintiff has had and maintained his residence and domicile in Fannin County, Texas." The alleged statement may be received as substantially one of a fact, as distinguished from a mere opinion or conclusion of the pleader. It fairly states facts of personal knowledge. The allegations are quite like the allegations of residence in the controverting affidavit which met approval of the court in case of Thompson v. Duncan (Tex.Civ.App.) 44 S.W.2d 508.
There was proof made by the plaintiff upon the hearing of the plea of venue, of the alleged publications in the newspaper, of the matters defamatory, and of the plaintiff's residence in Fannin county at time of the accrual and the filing of the action. There was prima facie proof of defamation and of concern of both defendants with the publication of the report and the defamation. A copy of the newspaper published on the alleged dates by the publishing company was introduced in evidence, and the very publications alleged appeared therein. Further evidence was offered bearing, in effect, upon the truth of the statements and of defamation of plaintiff. While there was no affirmative evidence of conspiracy between the two defendants, the published news item on its face affirmatively indicated concern of both defendants with the item and its publication. The codefendant of the publishing company was quoted in the publication as making the statement alleged to be of defamatory character to plaintiff. As to whether that is true in fact is an issue and matter of proof in the final trial on the merits. The case of Thompson v. Duncan, supra, would not be controlling of a different view, because in that case no proof was offered by the plaintiff tending to show libel or conspiracy aliunde the contesting affidavit itself. The only proof offered in that case in the hearing was as to residence in Dallas county, and the court held that was not sufficient proof to deny the defendant's formal plea of privilege.
The defendants challenge the residence of the plaintiff, in point of fact and of law, to be in Fannin county. In that respect, it is believed, the conclusion of the trial judge must be sustained. There may not be said, considering the evidence as a whole, that there was no proof of the factual elements stated and upon which the judge based his conclusion of fact. By giving to such conclusion of fact the force of venue of the action, the suit was properly brought in Fannin county. Houston Printing Co. v. Tennant, 120 Tex. 539, 39 S.W.2d 1089; Evans v. American Publishing Co., 118 Tex. 433, 13 S.W.2d 358, 16 S.W.2d 516.
The order is affirmed.