"Thomas L. Blanton sued A. H. Belo Corporation for damages for libel. The suit was filed in the District Court of Taylor County. The defendant duly filed its plea of privilege in statutory form to be
sued in Dallas County, the county of its residence. The plaintiff filed his controverting affidavit, which, eliminating the formal parts and oath, is as follows:
"`* * * 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 libel suit 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 this suit is brought at the time of the accrual of said cause of action, and that for approximately five years immediately preceding said September 3, 1936, the plaintiff resided with his family, at No. 3425 South Seventh Street in the City of Abilene, Taylor County, Texas, which was his legal home and place of residence and which during said time had in it their household furniture and family effects, and that for more than twenty-eight years continuously, immediately preceding said September 3, 1936, plaintiff with his family had resided in said City of Abilene, Taylor County, Texas, and that under paragraph No. 29, entitled Libel and Slander, of Article 1995, of the Revised Civil Statutes of Texas, the plaintiff exercised the option therein given him by law to file, and did file, this suit in the County where he resided when the grievances complained of in his Original Petition were by defendant committed, and that as provided in the aforesaid statute, this court has jurisdiction of this case and that venue is properly laid in Taylor County, Texas.' (Italics ours.)
"Plaintiff's petition clearly showed that it was a suit for damages for libel. As shown by the foregoing controverting affidavit, plaintiff's petition was referred to in the controverting affidavit and made a part thereof only `for the purpose of showing that this is a civil libel suit * * *.' Both the pleading and proof show that at the time plaintiff alleged in his petition that he was libeled by defendant and on the dates alleged in his controverting affidavit he was a resident of Taylor County, Texas. As shown by the controverting affidavit, it contains no allegation of facts showing that plaintiff was libeled by defendant. Plaintiff in his controverting affidavit alleged that `he resided in the City of Abilene, County of Taylor, State of Texas, where this suit is brought, at the time of the accrual of said cause of action * * *.'
"At the beginning of the hearing on the plea of privilege the trial court stated, in substance, that he was of the opinion that for plaintiff to maintain his suit in Taylor County, it was only necessary for plaintiff to show by his petition that the suit was one for libel and that at the time plaintiff alleged he was libeled plaintiff was a resident of Taylor County, and that the court did not want to take the time required to hear the proof as to whether or not plaintiff had, in fact, been libeled by defendant. Plaintiff announced that he was in accord with said views of the trial court, but that the courts of civil appeals were apparently in conflict on the question, and that for that reason plaintiff desired to make proof of the fact of libel. Upon the tender in evidence of newspaper publications offered for such purpose, the defendant objected on the ground that there was no pleading to support such proof. The objection was sustained.
"In our original opinion we affirmed the judgment of the trial court overruling defendant's plea of privilege. We there held that defendant, having objected to the said proferred evidence, could not assert the insufficiency of proof that plaintiff was libeled, on the theory that if such proof were essential the action of the defendant in objecting to and causing the exclusion of such proferred testimony constituted invited error.
"On the motion for rehearing we concluded we were in error in holding that such action constituted invited error, as shown by and for the reasons stated in the Minority Opinion. In the Majority Opinion we held that in a case of this kind it was necessary for plaintiff to allege and prove facts showing that at the time plaintiff resided in Taylor County he was libeled by defendant. We further held that plaintiff had neither alleged nor proved that he was libeled by defendant at a time when he resided in Taylor County. In the Minority Opinion it is stated that an allegation in the controverting affidavit that plaintiff resided in Taylor County `at the time of the accrual of said cause of action' is a sufficient allegation, while in the Majority Opinion we held it was necessary
for plaintiff to allege facts showing that he was libeled by defendant and that the quoted allegation is merely a legal conclusion.
"We are in agreement on the proposition that plaintiff has not made proof of the requisite venue facts. On motion for rehearing the judgment of the trial court overruling defendant's plea of privilege was reversed and the cause remanded.
"We are apparently in conflict with the decision of the Austin Court of Civil Appeals in Houston Printing Co. v. Tennant, 76 S.W.2d 762.
"This cause is now pending in this court upon plaintiff's (appellee's) motion for rehearing. We herewith transmit the three opinions in this case referred to, certify the following questions and most respectfully request answers thereto:
"1. Is the requirement of R.S.1925, Art. 2007, providing that defendant's controverting plea to a plea of privilege shall set out `specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending,' as applicable to a `suit for damages for libel' (Art. 1995, subd. 29) sufficiently complied with by allegations in the controverting affidavit that the action `is a civil libel suit' and that plaintiff was a resident of the County in which the suit was filed `at the time of the accrual of said cause of action,' or, in other words, is it necessary, in order to comply with Art. 2007 that such controverting plea (either in itself, or by reference to and adoption of, allegations in plaintiff's petition) allege as venue facts the several elements of the alleged cause of action?
"2. Is an allegation that plaintiff resided in the County where the suit was filed `at the time of the accrual of said cause of action' sufficient to admit proof that plaintiff was libeled by defendant, or is the quoted allegation a legal conclusion?
"3. If the answer to the preceding questions be such that it would follow therefrom that evidence offered to show a cause of action for libel, was improperly excluded on the ground that such evidence was not supported by the pleadings, is the appellant under the circumstances recited in the accompanying opinions, precluded from urging as a ground for the reversal of the judgment that there was no evidence to show that a libel was committed?"
