The suit is one brought by Thomas L. Blanton against A. H. Belo Corporation, publisher of the Dallas Morning News, to recover damages for alleged libel. The defendant duly filed a plea of privilege to be sued in Dallas County, the county of its residence. The plaintiff filed a verified controverting plea, alleging, among other things, that "this is a civil libel suit brought by plaintiff against said defendant upon libelous publications defaming the plaintiff which the defendant published between the dates of July 5, 1936 and September 3, 1936, both dates inclusive, as set forth and pleaded in Plaintiff's Original Petition which, for the purpose of showing that this is a civil libelsuit, is referred to and made a part of this Controverting Affidavit, the same as if it were now set forth and pleaded herein in full.
"Plaintiff shows that he resided in the city of Abilene, County of Taylor and State of Texas, where the suit is brought, at the time of theaccrual of said cause of action, and that for approximately 5 years immediately preceding said September 3, 1936, the plaintiff resided with his family * * * in * * * Taylor County, Texas, which was his legal home and place of residence * * * and for more than 28 years continuously immediately preceding said September 3, 1936, plaintiff with his family had resided in * * * Taylor County, Texas." (Italics ours.)
Upon the trial of the issues of venue tendered by said controverting plea to the plea of privilege the plaintiff, over objection of the defendant, introduced in evidence his original petition. He offered evidence designed to show that the defendant had published newspaper articles and editorials which, in plaintiff's original petition, were alleged to be libelous. Upon objection of the defendant this evidence was excluded. Upon the hearing plaintiff testified as a witness that during the months of June, July, August and, at least up to, September 25, 1936, he was a resident of Taylor County. During the introduction of this testimony the Judge inquired: "Is there any question about his residence ?" Counsel for defendant replied: "We are not going to be in the attitude of agreeing to it, but we are not going to offer any testimony." The Court said: "You don't agree that it was his legal residence ?" To which counsel replied: "We do not want to be in the attitude of agreeing to it." While plaintiff was detailing facts to show that for five years prior to September 9, 1936, he, with his family were living in a particular house as his home and place of residence in Abilene, Taylor County, Texas, the Honorable trial Judge remarked, "Well, the Court knows that you lived there because I passed there every week." Plaintiff moved to Washington, D.C. about September 25, 1936. Whether that involved a change of residence from Taylor County, we regard as immaterial in this case.
The court gave judgment for plaintiff against the defendant overruling the plea of privilege. The defendant has appealed.
Appellant asserts five propositions under five assignments of error. The action or ruling of the court alleged as the ground of error in each of the assignments of error was "in overruling [or in not sustaining] its plea of privilege."
By its first proposition plaintiff contends that "The Court erred in permitting Plaintiff to introduce in evidence his unsworn Original Petition or any facts alleged therein and in considering said petition as a part of Plaintiff's Controverting Affidavit, to defendant's statutory plea of privilege because said Controverting Affidavit failed to aver, under oath, that the facts alleged in said petition were true and *Page 1017 failed to allege in said Controverting Affidavit any facts alleged in said Petition other than Plaintiff's residence in Taylor County."
We agree with appellant that the allegations in appellee's original petition designed to show a cause of action for damages for libel were not a part of the controverting plea. Assuming that they could have been made such by simple reference and adoption, it is evident that that was not done. The reference to, and adoption of, said pleading for the single specified purpose "of showing that this is a civil libel suit" was, in accordance with well known legal principles, an implied limitation of the purposes of such reference and adoption, to the particular one so specified. There was no error in the action of the court in overruling appellant's objection to the admission of plaintiff's petition in evidence, unless it was for the reason that the court was required to take judicial knowledge of the venue fact that the nature of the suit was one for damages for libel and the introduction of the pleading with the effect of thereby encumbering the record was unnecessary. Since that objection was not made, we need not determine whether, if made, it should have been sustained. The record does not show that the Court considered said petition as a part of plaintiff's controverting plea. Plaintiff's petition as evidence established conclusively the single venue fact that the suit was "a suit for damages for libel" under exception 29 to the general venue law (R.S. 1925, Art. 1995, subd. 29). As proof of such fact, said pleading was the "best and all-sufficient evidence." Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302. As proof of that venue fact it was not even necessary that the pleading be formally introduced. It would have been the duty of the court to take judicial knowledge of the fact. Fielder v. Parker, Tex. Civ. App.119 S.W.2d 1089, 1092. Since, therefore, the court could not properly have considered the allegations of the pleading as evidence of any other venue fact, and the record does not disclose that the court did so, we will not presume that the honorable trial Judge considered the allegations of the petition as evidence of anything, other than the nature of the action.
By its second proposition, appellant contends, in part, that "Since * * * plaintiff filed only a Controverting Affidavit alleging his residence to be in Taylor County, with the statement of a conclusion that he had filed his suit for civil libel, without pleading specifically the facts relied upon to confer venue, Plaintiff failed to meet the requirements of Art. 2007, R.S. 1925, and the Court should have sustained such Plea of Privilege." The proposition as thus stated does not exactly accord with the record. Plaintiff not only alleged his residence to be in Taylor County, but also that said place of residence was such "at the time of the accrual of said cause of action"; the cause of action as alleged being for libelous publications defaming the plaintiff which the defendant published between July 5, 1936, and September 3, 1936, both dates inclusive, as set forth and pleaded in plaintiff's Original Petition." An allegation to the effect that plaintiff had filed a suit for civil libel was not, we think, the statement of a conclusion. That the suit was filed was a fact which, if required to be alleged, was certainly not required to be proved by any other evidence than such as was supplied by the court's judicial knowledge of the fact. And, as has already been said, the venue fact that the suit was for civil libel was conclusively established by plaintiff's original petition, whether formally introduced in evidence or not.
The proposition now under consideration assumes, rather than asserts, that it was necessary for appellee, in his controverting affidavit, directly, or at least by proper reference to, and adoption of, allegations of like effect in plaintiff's petition, and in either case properly verified by oath, to allege each and all of the facts necessary to show a cause of action in favor of plaintiff against defendant for damages for libel. That this is the principal question presented by this appeal is made still clearer by appellant's third and fourth propositions, as follows:
"Proposition III: The controverting affidavit filed by plaintiff is insufficient to meet the requirements of Art. 2007, Revised Statutes 1925, since no facts are alleged under oath that constitute any cause of action against the defendant or give the court venue in this case, since the only facts set forth under oath are that the plaintiff lives in Taylor County and has filed a suit against defendant for civil libel.
"Proposition IV: The controverting affidavit filed by the plaintiff in this case is insufficient to meet the requirements of Art. 2007, Revised Statutes 1925, since the original petition is only referred to therein `for the purpose of showing that this is a civil libel suit' and since the affiant only *Page 1018 verifies under oath `the facts set forth and stated in the foregoing controverting affidavit', but does not verify the facts set forth in his petition."
After careful consideration we are of the opinion that in the sense that "facts" are required to be alleged in pleadings there are in a libel suit, the venue of which as brought is sought to be sustained upon the optional exception relied upon in this case, two, and only two venue facts. They are (1) that the suit is one for "damages" for libel; (2) that plaintiff was a resident of the county wherein the suit was brought "at the time of the accrual of the cause of action." Both these venue facts, more certainly the latter, must be alleged under oath in plaintiff's controverting plea to the plea of privilege. Fielder v. Parker, Tex. Civ. App. 119 S.W.2d 1089. The first named "venue fact", as already said, is conclusively established by the allegations in plaintiff's petition. Said pleading is "the best and all sufficient evidence" of that fact. Stockyards Nat. Bank v. Maples, supra. As such conclusive evidence, the pleading is effective to establish the venue fact, whether formally introduced or not. Fielder v. Parker, supra. We may therefore without further consideration of said first venue fact proceed to a consideration of what we have above stated to be the second and only other venue fact.
At the threshold of this inquiry, the question suggests itself: Does the above statement of such venue fact in reality include not one but two or more venue facts? This may be said to be the determinative question. If it is truly the statement of a single venue fact, then it would seem there can be no question but that plaintiff's controverting plea in this case was sufficient as a pleading of the essential venue facts, unaided by any reference to, or adoption of, the allegations in the petition, either for all purposes, or a limited purpose. The controverting plea plainly alleged that plaintiff resided in Taylor County at the time of the accrual of the cause of action alleged in his petition.
It certainly would not be contended that the fact of plaintiff's residence in Taylor County, however conclusively established, would, without reference to any particular time of such residence, be in any sense material. Likewise, the existence of facts which would give rise to a cause of action in favor of plaintiff against the defendant for libel, without any reference to the residence of plaintiff in Taylor County, would so far as possibly affecting any question of venue, be wholly immaterial. There is a time element, involving a coincidence of the fact of residence with the time of the accrual of a cause of action, essential to the "venue fact." An issue, in the sense that a venue fact must be pleaded, may consist of a single fact, or it may consist of a group of facts. When it consists of more than one fact, or element, it is nonetheless a single issue. As said by Judge Hickman, for this court, in the City of Abilene v. Moore, 12 S.W.2d 604, 606, in reference to an issue of negligence: "Where the combination of two facts is necessary to constitute negligence, and neither one of the facts stated alone would do so, it would not be required of the trial court that he single out each evidentiary fact and then group them himself after the jury had returned its answer. But where two facts must concur in order to constitutenegligence, those facts should be grouped in order to have a finding on the ultimate issue, which is the negligence of the party." Citing Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517. (Italics ours.) That principle, we believe to be applicable to, and controlling of, the question now under discussion. It leads irresistibly, we think, to the conclusion that the before mentioned statement of the venue fact is correctly but the statement of one such fact. As such, it was sufficiently alleged in plaintiff's controverting plea, without reference to his petition.
It is believed this conclusion in no way conflicts with the decision in Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, or any of the cases relied upon. No question of the sufficiency of the pleadings was involved in Compton v. Elliott. It was decided that under exception 9 (R.S. 1925, Art. 1995) in order to prove the venue fact that Stephens County was the place where the alleged crime of malicious prosecution was committed, it was necessary to prove that the crime was committed. This was upon the theory that the place of the commission of the alleged crime — the venue fact or issue to be determined by the judgment — could not be proved to be, as alleged, in Stephens County without evidence to show that the crime was in fact committed. But there was no suggestion that as a matter of pleading, it would have been insufficient simply to allege that the suit was one based upon the crime of malicious prosecution, and that such crime was committed in Stephens County. *Page 1019
In this case, if the fact in issue is as we have stated, the facts to show the existence of a cause of action for libel are only evidentiary, not even relating directly to the fact in issue. They do relate, however, to the fact of the accrual of a cause of action, which latter fact, in turn, relates to the time of such accrual. The fact of the time of such accrual does relate directly to the fact in issue.
An elementary rule of evidence is that "Evidence must relate to facts in issue and to relevant facts." (Italics ours) Rule 5, Vernon's Ann.Civ.St., Vol. 10, p. 194, art. 3713. If, therefore, facts which do not relate to the fact in issue do relate to another or other facts which relate to the fact in issue, they are under said rule admissible in evidence. This rule it seems to us forbids the recognition of any distinction between this case and Compton v. Elliott, supra. In that case proof of the facts showing all the elements of a crime was held to be necessary in order to prove that Stephens County was the place where the crime was committed. It would appear, by the same reasoning, that proof of the facts showing all the elements of a cause of action is necessary in order to prove the fact of the accrual of the cause of action; that the fact of the accrual of the cause of action is necessary to show the time of such accrual; and the proof of the fact of the time of such accrual is necessary in order to show that it was coincident with the fact of the residence of plaintiff in Taylor County — the ultimate fact in issue. We can see nothing, however, in this view of the required evidence to militate against the proposition that there were but two venue facts in issue as stated.
It seems to be assumed that because in a suit to establish the liability of the defendant for damages for libel, it would be necessary to allege each fact constituting an element in the cause of action as may be freely admitted, the same would be true of the controverting plea to a plea of privilege. This assumption we believe to be unwarranted. In the suit, issues consisting of the several facts or elements of the cause of action are sought to be established by the judgment of the court. They are facts in the sense that facts are to be pleaded, and not the evidence to establish such facts. It would not be necessary or proper to allege the facts relied upon as evidence to prove the facts in issue.
But in the trial of the issues of venue, it is not sought by the judgment to determine the existence of facts showing a cause of action. Those facts, as said before, are only evidentiary in so far as they relate to the issues of venue. They are not themselves the "venue facts" sought to be established by the judgment. This distinction we think supports the proposition that although in a suit to establish a legal liability it is necessary to allege the facts constituting each element in the cause of action, in a controverting plea to establish the proper venue of a suit in the county where brought, it is not necessary to allege the facts constituting each element in the cause of action because the existence of the cause of action is not the matter to be determined by the judgment of the court, such facts being but evidentiary of the issues to be determined by the judgment.
The case of Thompson v. Duncan, Tex. Civ. App. 44 S.W.2d 508, seems to be the one chiefly relied upon by appellant. There is nothing in the opinion in that case, we think, contrary to the conclusions herein expressed. Appellant in its brief quotes with emphasis from that opinion as follows: "`Said J. L. Duncan states, on oath, that the facts reliedupon to confer venue of this cause in the county where [the suit] ispending is that he, the plaintiff, resided in Dallas County, Texas, atthe time of the accrual of the cause of action set out in plaintiff'spetition.'" Such, we think, is the exact legal equivalent of the allegations in the controverting plea in the instant case, without any reference to, or adoption of, any allegation for any purpose in plaintiff's petition. But in Thompson v. Duncan, supra, as further quoted in appellant's brief, it is said "The allegations of the contesting affidavit are doubtless sufficient to raise that issue, and, while plaintiff made satisfactory proof that he resided in Dallas county on September 27, 1929, and continuously thereafter, no proof was offered showing, or tending to show, that he was slandered or libeled on that or on any other date." (Italics ours) Thus it appears that there was not only no question of the sufficiency of the controverting plea, but allegations almost identical with those in this case were expressly assumed to be sufficient. In that case, as in Compton v. Elliott, supra, no question of the sufficiency of the pleadings was *Page 1020 involved but the decision in both of said cases dealt only with questions of evidence.
In American Pub. Co. v. Holland, Tex. Civ. App. 89 S.W.2d 286, 287, the essential venue facts in a case like this were stated thus: "The sole essentials to maintain venue in Burnet county were that (1) the suit was one for libel and (2) appellant resided in Burnet county when the cause of action arose." That in so saying the court was speaking upon a question of evidence is shown by the succeeding sentence, namely, "These essentials were established either by proof or admission at the hearing." The only question before the court is disclosed in the following from the opinion "No proof was offered upon the fact of such ownership [of the paper by defendant], which omission forms the basis of appellant's assertion of reversible error." We think, as applied to a question of pleading, such statement of the essentials would be correct, but it does not follow that the same would not be true even if the court's conclusion upon the particular question of evidence was not correct.
It is our conclusion, therefore, that the question of the sufficiency of the controverting plea to tender the proper issues of venue must be determined against the contentions of the appellant.
Appellant's fifth and only other proposition, and the only proposition not dependent, as a premise, upon the insufficiency of the controverting plea is as follows: "The evidence in this case, which consists entirely of testimony of the plaintiff's residence, plaintiff's petition, the charter of defendant corporation, and the circulation of the newspaper called `The Dallas Morning News', is insufficient to constitute venue facts to overcome the prima facie case made by defendant when it filed its plea of privilege."
The proposition presents a question of the insufficiency of theevidence to support the judgment, overruling the plea of privilege. The question arises under most unique circumstances. Plaintiff endeavored to introduce the very evidence, which so far as the record shows, or any question is presented concerning it, would have supplied the very evidence, the absence of which is here contended as a reason why the court improperly sustained the plea of privilege. Included as a part of such evidence were the alleged libelous newspaper editorials and articles. Without that evidence no character of other evidence, however conclusive, could have been sufficient. The court excluded this evidence upon the objection of appellant. Thus it appears that if there was any error in such action of the court it was error invited by appellant. We think that under the decision in Compton v. Elliott, supra, the court may have erred in the exclusion of the evidence. If so, it was error committed against the appellee, who, evidently satisfied with the judgment, does not present same for our review, the error not being fundamental, as would be necessary under a cross-assignment of error. The appellant having by its objection upon the untenable ground, as we have, concluded that there was no sufficient pleadings to authorize the introduction of the evidence, procured its exclusion, cannot, we think, be heard to assert that the judgment should be reversed because of the insufficiency of the evidence to support it. That error must be treated the same as if it were waived, the appellant being in a sense estopped to assert it.
We, therefore, conclude upon the whole that the judgment of the court below overruling the plea of privilege has not been shown to have been erroneous, and that it should be affirmed. It is accordingly so ordered.
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