A. H. Belo Corporation v. Blanton

• Decision Date: 11 November 1938
• Docket Number: No. 1848.,1848.
• Parties: A. H. BELO CORPORATION v. BLANTON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 1015

126 S.W.2d 1015

A. H. BELO CORPORATION v. BLANTON.^*

No. 1848.

Court of Civil Appeals of Texas. Eastland.

November 11, 1938.

On Rehearing February 3, 1939.

Appeal from District Court, 104th Judicial District, Taylor County; W. R. Chapman, Judge.

Action by Thomas L. Blanton against the A. H. Belo Corporation for libel. From a judgment overruling a plea of privilege, defendant appeals.

Reversed and remanded.

Turner, Seaberry & Springer, of Eastland, for appellant.

Blanton & Blanton, of Albany, for appellee.

FUNDERBURK, Justice.

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 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 the suit is brought, at the time of the accrual 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 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 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...